The Federal Boat Safety Act of 1971 and Propeller Strike Injuries: An Unexpected Exercise in Federal Preemption

Transcription

1 Fordham Law Review Volume 68 Issue 2 Article The Federal Boat Safety Act of 1971 and Propeller Strike Injuries: An Unexpected Exercise in Federal Preemption Amy P. Chiang Recommended Citation Amy P. Chiang, The Federal Boat Safety Act of 1971 and Propeller Strike Injuries: An Unexpected Exercise in Federal Preemption, 68 Fordham L. Rev. 487 (1999). Available at: This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact tmelnick@law.fordham.edu.

2 NOTES THE FEDERAL BOAT SAFETY ACT OF 1971 AND PROPELLER STRIKE INJURIES: AN UNEXPECTED EXERCISE IN FEDERAL PREEMPTION Amy P. Chiang" INTRODUCTION June 6, 1993 was a beautiful day to spend on the water. Kathryn Lewis was doing just that-boating with her boyfriend and his family on Strom Thurmond Lake in Georgia.' The boat was outfitted with a Brunswick outboard motor 2 Although the motor did not have a propeller guard, 3 no one gave it second thought. Everyone took turns riding on an inner tube that was pulled behind the boat. During Kathryn's boyfriend's turn to ride on the inner tube, the driver made a sudden sharp turn.' In an instant, Kathryn fell or was tossed off the left side of the boat She tumbled into the water and onto the motor's propeller blades. 6 The blades repeatedly struck Kathryn's head and body as her boyfriend's family watched in horror2 She died immediately. * I dedicate this Note to my family, Frank, Lisa, and David, and Mercer Borden. I thank them for their patience, understanding, and support throughout this process. In addition, I thank Professor Joseph Sweeney for helping me develop this topic and Note at its early stages. 1. See Lewis v. Brunswick Corp., 107 F.3d 1494, 1497 (11th Cir.), cert. granted, 118 S. Ct. 439 (1997), cert. dismissed, 118 S. Ct (1998). This fact pattern is loosely based on the Lewis case; details have been added. 2. See id. at An outboard motor is "a small internal combustion engine with [the] propeller integrally attached for mounting at the stem of a small boat." Merriam Webster's Collegiate Dictionary 825 (10th ed. 1997). 3. See Lewis, 107 F.3d at A propeller guard is a device that covers the blades of a propeller motor to prevent contact between the blades and other objects, including people. See also infra note 80 (describing types of guards that are available on the market today). Its purpose in this context is to protect people from propeller strike injuries caused by coming into contact with the blades. 4. See id 5. See id 6. See id 7. See id. 8. See id

3 FORDHAM LAW REVIEW [Vol. 68 Unfortunately, tragic stories like Kathryn's are not uncommon. 9 Both the number of recreational boaters and reported deaths and accidents relating to recreational boating are rising steadily in the United States. 10 In 1997, the United States Coast Guard ("Coast Guard") reported 8047 accidents and 4555 injuries related to recreational boating." a These figures represented a record number of accidents and injuries reported, 12 and resulted in over $29 million in property damage. 3 Similarly, the number of victims of motor or propeller accidents is also increasing. 14 In 1997, the Coast Guard reported 123 motor or propeller related accidents and 126 injuries, 15 up from 119 motor or propeller related accidents and 114 injuries reported in This growing accident rate has resulted in several lawsuits challenging the safety of outboard motors that are not equipped with propeller guards. 17 An unexpected outcome of these civil suits against motor manufacturers is a heated debate over federal preemption of these state law based claims. 18 In the archetypal case, the exposed propeller of an outboard motor injures or kills the plaintiff in a tragic boating accident. 1 9 The plaintiff, or the plaintiff's estate or survivors, 9. See, e.g., Carstensen v. Brunswick Corp., 49 F.3d 430, 431 (8th Cir. 1995) (stating that the passenger fell off the boat and was injured by the boat's propeller); Moss v. Outboard Marine Corp., 915 F. Supp. 183, 185 (E.D. Cal. 1996) (same); Shields v. Outboard Marine Corp., 776 F. Supp. 1579, 1580 (M.D. Ga. 1991) (same). 10. See Thomas A. Russell & Richard J. Nikas, Recent Developments in Recreational Boating Law, 9 U.S.F. Mar. L.J. 381, 382 (1997). Russell and Nikas state: Deaths involving personal watercraft and small open boats accounted for the majority of recreational boating accidents and deaths in In sharp contrast, only 68 individuals died in accidents involving the transportation of cargo or passengers, or in commercial fishing accidents in The disparity in casualties between recreational and commercial maritime accidents underscores the hazards associated with the navigation and operation of small vessels... Id. at (footnotes omitted). 11. See U.S. Coast Guard, U.S. Dep't of Transp., Boating Statistics-1997, 8 (1999), available on United States Coast Guard Boating Statistics (visited Aug. 19, 1999) < This represents an increase from the 8026 accidents and 4442 injuries reported in See id. In 1995, there were 8019 accidents and 4141 injuries. See id. 12- See id. at See id. at See id. 15. See id. 16. See id. In 1995, the Coast Guard reported 117 accidents and 109 injuries. See id. 17. See National Boating Safety Advisory Council, Report of the Propeller Guard Subcomm. 4 (Nov. 7, 1989) [hereinafter Propeller Guard Report]; infra note See E. Gregg Barrios, Recent Developments in Admiralty and Maritime Law, 33 Tort & Ins. L.J. 277, 284 (1998); Alan J. Lazarus et. al., Recent Developments in Products, General Liability, and Consumer Law, 31 Tort & Ins. L.J. 383, 393 (1996); Dennis W. Nixon, Products Liability and Pleasure Boats, 29 J. Mar. L. & Com. 243, (1998). 19. See supra notes 1-8 and accompanying text.

4 1999] FEDERAL BOAT SAFETY ACT 489 sues the motor manufacturer based on a state common law tort claim for failure to outfit the outboard motor with a propeller guard,'0 generally basing these suits on theories of negligence and product liability. 21 Inevitably, the defendant-companies move for summary judgment on the ground that the Federal Boat Safety Act of ("FBSA") preempts state common law claims regarding propeller guardsp z3 The defendant typically argues that the plaintiff's claim is preempted by the FBSA's requirement that state and federal boating safety laws be identical in light of the Coast Guard's policy decision not to mandate propeller guards. 2 4 Twelve courts have addressed whether federal preemption is a valid defense to these plaintiffs' common law claims 5 All but two courts upheld the defense and ruled that the plaintiff's claims were preempted. 6 Those courts finding preemption ("majority") have done so on the ground that Congress's intent to preempt state law via the FBSA, coupled with the Coast Guard's recommendation not to regulate propeller guards, is tantamount to preempting the states from regulating otherwise. 7 Courts that did not find preemption ("minority") generally focused on a narrower reading of the statute in conjunction with a strong presumption against preemption and in 20. See Lewis v. Brunswick Corp., 107 F.3d 1494, 1497 (11th Cir.), cert. granted, 118 S. Ct. 439 (1997), cert dismissed, 118 S. Ct (1998). After the accident, Kathryn's parents filed suit in Georgia State court against the motor manufacturer, Brunswick Corporation ("Brunswick"), to recover damages for their daughter's death. See id. Kathryn's parents alleged that Brunswick's engine was defectively designed for lack of a propeller guard and that Brunswick's failure to install a guard constituted negligence. See hi 21. See Propeller Guard Report, supra note 17, at 4-5 (negligence); Elliot v. Brunswick Corp., 903 F.2d 1505,1505 (11th Cir. 1990) (product liability). 22. See 46 U.S.C (1994). 23. See Lewis, 107 F.3d at 1497; Davis v. Brunswick Corp., 854 F. Supp. 1574, 1578 (N.D. Ga. 1993), on reconsideration in part (Mar. 17,1994). 24. See Moore v. Brunswick Bowling & Billiards Corp., 889 S.W.2d 246,248 (Tex. 1994) ("[Defendant] contends that [Plaintiff's] claims are expressly preempted by the combination of 4306 and the Coast Guard's decision not to mandate propeller guards through regulation, as evidenced by a Coast Guard report." (footnote omitted)). 25. Thirteen cases have arisen over this issue in twelve courts. See Lewis, 107 F.3d at 1494; Carstensen v. Brunswick Corp., 49 F.3d 430 (8th Cir. 1995); Elliot, 903 F2d at 1505; Moss v. Outboard Marine Corp., 915 F. Supp. 183 (E.D. Cal. 1996); Shield v. Bayliner Marine Corp., 822 F. Supp. 81 (D. Conn. 1993); Davis, 854 F. Supp. at 1574; Shields v. Outboard Marine Corp., 776 F. Supp (M.D. Ga. 1991); Mowery v. Mercury Marine, Div. of Brunswick Corp., 773 F. Supp (N.D. Ohio 1991); Beech v. Outboard Marine Corp., 584 So. 2d 447 (Ala. 1991); Farner v. Brunswick Corp., 607 N.E.2d 562 (Ill. App. Ct. 1992); Ryan v. Brunswick Corp., 531 N.V.2d 793 (Mich. Ct. App. 1995); Ard v. Jensen, 996 S.W.2d 594 (Mo. Ct. App. 1999); Moore, 889 S.W.2d at 246. Two of these cases did not apply a preemption analysis and therefore are not included in this discussion. See Elliot, 903 F.2d at 1508 n.3; Beech, 584 So. 2d at See infra part III. 27. See infra part III.A.

5 FORDHAM LAW REVIEW [Vol. 68 favor of states' rights. 2 1 In recognition of this controversy, the Supreme Court granted certiorari to Lewis v. Brunswick Corp. in This highly anticipated decision never came to fruition, however, as the parties agreed to dismiss the case before the Court rendered judgment. 30 Thus, the issue of the FBSA's preemption of state common law claims remains unresolved. 1 This Note considers whether the FBSA preempts state common law tort claims for liability based on a failure to install propeller guards. It concludes that although the FBSA does not expressly preempt such claims, it does so implicitly. Part I discusses the historical backdrop and legislative history of the Federal Boat Safety Act of This part also examines the report on the feasibility and effectiveness of requiring propeller guards and the Coast Guard's subsequent decision not to mandate propeller guards. Part II outlines the doctrine of federal preemption and its basic principles and characteristics. Part III sets forth the division among the courts over whether the FBSA preempts state common law propeller guard claims. Part IV applies preemption analysis and finds that while defendant-companies do not have an express preemption defense to these state tort claims, they do have an implied preemption defense. This Note concludes that courts should henceforth rule that the FBSA implicitly preempts any state common law tort claim for liability based on the absence of an outboard motor propeller guard. I. BACKGROUND This part discusses the FBSA and the circumstances and intent behind its enactment, as well as the study assessing the feasibility of requiring propeller guards on the outboard motors of recreational boats. A. The Federal Boat Safety Act of 1971: Historical Backdrop & Legislative History The Federal Boat Safety Act of authorizes the Coast Guard to promulgate "regulations establishing minimum safety standards for recreational vessels and associated equipment The FBSA's original purpose was to create a uniform national boating safety program to promote the overall participation and enjoyment of recreational boating, and to simultaneously shield from injury the 28. See infra part III.B S. Ct. 439,439 (1997). 30. See Lewis, 118 S. Ct. at This may not be the case for long, however, as a more recent decision in 1999 may soon raise this issue with the Court again. See Ard v. Jensen, 996 S.W.2d 594 (Mo. Ct. App. 1999). 32. The Federal Boat Safety Act is codified at 46 U.S.C (1994). 33. Id. 4302(a)(1); see infra note 70.

6 1999] FEDERAL BOAT SAFETY ACT growing number of people attracted to recreational boating.' When the FBSA was initially proposed, recreational boating was increasing at an astronomical rate. 35 Unfortunately, this growth came at a price. 34 Nearly 7000 persons lost their lives in boating accidents between Sources predicted that the number of boat owners would rise rapidly, 3 8 and that the number of boat related fatalities would increase. Existing law seemed inadequate to handle this explosion of casualties. 39 In Congress's view, the annual fatality rate was alarming enough to warrant requiring recreational boating manufacturers to adhere to higher safety standards-on par with the dangers associated with use of their products.' 4 According to Congress, new and uniform federal regulation "could substantially reduce the level of fatalities... resulting from boating mishaps." 41 Thus, Congress enacted the FBSA See H.R. Rep. No , at 2 (1976), reprinted in 1976 U.S.C.CA.N. 5542, See S. Rep. No , at 6-7 (1971), reprinted in 1971 U.S.C.C.A.N. 1333, (estimating that "the number of recreational boats in the United States [was] increasing at the rate of about 4,000 per week and that by 1975 over 50 million persons [would] be engaged in [boating]," and that "[olver 40 million Americans [were] engag[ed] in recreational boating each year in approximately 9,000,000 boats"). 36. See id., reprinted in 1971 U.S.C.C.A.N. 1333, (stating that this "development has also brought with it accidents, deaths and injuries"). 37. See id. at 7, reprinted in 1971 U.S.C.C.A.N. 1333, See il at 6, reprinted in 1971 U.S.C.C.A.N. 1333, ; H.R. Rep. No , at 2 (1971). 39. See S. Rep. No , at 14 (1971), reprinted in 1971 U.S.C.C.A.N. 1333, 1335 (stating that "[a]wareness of the need for new legislation in boating safety has been growing for several years"). Prior law consisted of the Motorboat Act of 1940, Pub. L. No , 54 Stat. 163 (codified as amended in scattered sections of 46 U.S.C.), and the Federal Boating Act of 1958, Pub. L. No , 72 Stat (codified as amended in scattered sections of 46 U.S.C.). The 1940 Act required specific safety equipment and measures. See S. Rep. No , at 13 (1971), reprinted in 1971 U.S.C.C.A.N. 1333, The 1940 Act was problematic for two reasons. First, its requirements were inflexible and could not be modified to accommodate situations not contemplated by the statute. See id. at 13-14, reprinted in 1971 U.S.C.C.A.N. 1333, Second, compliance with the 1940 Act depended solely on the boat owner or operator, even if the ability to comply was beyond the operator's control and lay with the manufacturer. See id. at 14, reprinted in 1971 U.S.C.C.A.N. 1333, The 1958 Act merely provided for "the current scheme for State numbering of small boats under Federal supervision." Id., reprinted in 1971 U.S.C.C.A.N. 1333, The need for new legislation was clear. See id., reprinted in 1971 U.S.C.C.A.N. 1333, The FBSA's enactment was intended to supply this need. 40. See id. at 13, reprinted in 1971 U.S.C.C.A.N. 1333,1335; see also H.R. Rep. No , at 2 (1971) (stating that the number of deaths related to recreational boating was "distressing, either in absolute terms or relative to other modes of transportation"). 41. S. Rep. No , at 13 (1971), reprinted in 1971 U.S.C.C.A.N. 1333, See id. at 6, reprinted in 1971 U.S.C.C.A.N. 1333, 1333 (stating that the FBSA "largely incorporates the substance of the Federal Boating Act of 1958, which would be repealed, and thereby essentially provides a single comprehensive Act dealing with the subject of safety for boats used principally for other than commercial use"); H.R.

7 FORDHAM LAW REVIEW [Vol. 68 Congress believed that requiring manufacturers to provide safer boats and equipment could improve boating safety. 3 New and uniform manufacturing and equipment standards at the federal level would also limit any interference with interstate commerce." Additionally, Congress wanted to increase the role of the states in boating safety by providing a federal grant in aid incentive payment program to states that had instituted, or intended to institute, certain approved state boating safety programs. 45 State involvement in boating safety was necessary because approximately half of all deaths and more than one-third of all accidents occurred in waters solely under state jurisdiction. 46 As enacted, the FBSA was a broad statute that sought to regulate recreational boating. 47 Rather than set forth specific standards, the FBSA authorized the Coast Guard to consider and prescribe standards and regulations for recreational vessels. 4 " The FBSA focused primarily on establishing uniform safety standards for the manufacture and performance of recreational boating vessels and their related equipment. 49 B. Preemption and Preservation of Common Law Claims Particularly relevant to these common law claims involving propeller strike injuries are two FBSA provisions: the federal preemption clause ("preemption clause") and the saving to suitors clause ("savings clause"). 50 Rep , at 2-3 (1971) ("It is time that recreational boats be built in accordance with standards prescribed by one Federal agency-in this case the Coast Guard-so that the public can enjoy recreational boating with greater safety."). 43. See S. Rep. No , at 6 (1971), reprinted in 1971 U.S.C.C.A.N. 1333, See id. at 14, reprinted in 1971 U.S.C.C.A.N. 1333, A uniform standard facilitates interstate commerce because it is easier for a product to comply with one safety standard than with 50 different standards. 45. See id., reprinted in 1971 U.S.C.C.A.N. 1333, See id. at 13, reprinted in 1971 U.S.C.C.A.N. 1333, See H.R. Rep. No , at 158 (1983), reprinted in 1983 U.S.C.C.A.N. 924, 970. The FBSA involves the creation of "national construction and performance standards for recreational vessels and their associated equipment, the necessary flexible regulatory authority for inspection and testing, Federal preemption, certain necessary prohibited acts, enforcement authority, investigation and reporting requirements, procedures for repair and defect notification, and attendant penalties and injunctive relief." Id., reprinted in 1983 U.S.C.C.A.N. 924, See id. at 159, reprinted in 1983 U.S.C.C.A.N. 924, 971. The FBSA actually granted this right to the Secretary of Transportation, who delegated this responsibility to the Coast Guard. See Lewis v. Brunswick Corp., 107 F.3d 1494, 1498 (11th Cir.), cert. granted, 118 S. Ct. 439 (1997), cert. dismissed, 118 S. Ct (1998); see also 46 U.S.C (1994) (authorizing the Secretary to delegate its duties under the FBSA to "a person, private or public agency, or organization"). 49. See H.R. Rep. No , at 158 (1983), reprinted in 1983 U.S.C.C.A.N. 924, See Becker v. United States Marine Co., 943 P.2d 700, (Wash. Ct. App. 1997).

8 1999] FEDERAL BOAT SAFETY ACT The preemption clause provides that "a State or political subdivision of a State may not establish, continue in effect, or enforce a law or regulation establishing" safety standards or imposing requirements for recreational vessels or associated equipment "that is not identical to a regulation prescribed under [the FBSA]." 51 The preemption clause essentially requires state laws or regulations to match the federal regulations prescribed under the FBSAP and allows for the federal preemption of state standards for boat and equipment safety. 3 The clause comports Nvith the established tradition of preemption in maritime safety by addressing the need for uniform regulations for recreational boats operating in interstate commerce. M 5 The clause also ensures that the FBSA would not require manufacturers of such boats and equipment to abide by widely varying local laws. s5 The preemption clause, however, cannot preempt state laws or regulations regarding safe boat operation and use that are properly within the scope of state or local concern.s Congress realized that certain locations may have unusual situations that warrant a departure from the uniform federal standardyl As such, the preemption clause allows states to impose additional requirements for "carrying or using marine safety articles... when necessary to meet uniquely hazardous local conditions or circumstances." ' This right is limited, however, and is still ultimately subject to the need for uniformity U.S.C The preemption clause provides in full: Federal preemption Unless permitted by the Secretary under section 4305 of this title, a State or political subdivision of a State may not establish, continue in effect, or enforce a law or regulation establishing a recreational vessel or associated equipment performance or other safety standard or imposing a requirement for associated equipment (except insofar as the State or political subdivision may, in the absence of the Secretary's disapproval, regulate the carrying or use of marine safety articles to meet uniquely hazardous conditions or circumstances within the State) that is not identical to a regulation prescribed under section 4302 of this title. IdL 52. See, e.g., Ryan v. Brunswick Corp., 531 N.W.2d 793,795 (Mich. Ct. App. 1995) ("Section 4302 authorizes the Secretary of Transportation to prescribe regulations requiring the installation of certain equipment on recreational vessels and prohibiting the installation of equipment that does not conform with federal safety standards."). 53. See S. Rep. No , at 20 (1971), reprinted in 1971 U.S.C.C.A.N. 1333, See id., reprinted in 1971 U.S.C.C.A.N. 1333, See id., reprinted in 1971 U.S.C.C.A.N. 1333, See id., reprinted in 1971 U.S.C.C.A.N. 1333,1341; infra note See S. Rep. No , at 20 (1971), reprinted in 1971 U.S.C.C.A.N. 1333, 1341; see also infra note 311 (discussing one locale where this provision might be applicable). 58. S. Rep. No , at 20 (1971), reprinted in 1971 U.S.C.C.A.N. 1333, See id., reprinted in 1971 U.S.C.C.A.N. 1333, 1341 ("A right of disapproval, however, is reserved to the Secretary to insure that indiscriminate use of state authority does not seriously impinge on the basic need for uniformity.").

9 494 FORDHAM LAW REVIEW [Vol. 68 The FBSA also contains a savings clause that preserves particular common law claims from federal preemption. 6 The inclusion of the savings clause indicates that Congress anticipated and acquiesced to common law claims implicating the FBSA. 1 The clause provides that compliance with the FBSA does not preclude liability at common law, 62 and preserves those claims that are compatible with the FBSA's federal regulatory scheme. 63 Congress intended to ensure that defendant manufacturers could not use mere compliance with the minimum standards established under the FBSA as a defense in product liability suits. 64 Thus, Congress had no intention of completely shielding the boating industry from state tort liability. 65 The preemption clause and the savings clause pull in opposite directions, creating a tension in statutory interpretation. 66 On the one hand, the preemption clause grants the federal government the power to override state law when regulating under the FBSA. 67 On the other hand, the savings clause suggests that this power is not absolute, and that the states retain some ability to regulate boating safety. 6 8 Therefore, the challenge lies in interpreting the two clauses in a way that gives effect to both. 69 C. The Report of the Propeller Guard Subcommittee Under the FBSA, the Secretary of Transportation ("Secretary") has the power to promulgate the statute's safety standards and regulations. 7 " Before prescribing a regulation, the Secretary must first consult with the National Boating Safety Advisory Council ("NBSAC") regarding the necessity of the regulation and the extent to which regulation will increase recreational boating safety. 7 ' If the 60. The savings clause is codified at 46 U.S.C. 4311(g) (1994) and provides in full: "Compliance with this chapter or standards, regulations, or orders prescribed under this chapter does not relieve a person from liability at common law or under State law." 61. See Lewis v. Brunswick Corp., 107 F.3d 1494, 1504 (11th Cir.), cert. granted, 118 S. Ct. 439 (1997), cert. dismissed, 118 S. Ct (1998). 62. See 46 U.S.C. 4311(g). 63. See Lewis, 107 F.3d at 1504 (deciding which product liability claims may be brought "without upsetting the overall scheme Congress intended"). 64. See S. Rep. No , at 32 (1971), reprinted in 1971 U.S.C.C.A.N. 1333, See Becker v. United State Marine Co., 943 P.2d 700, 703 (Wash. Ct. App. 1997). 66. See id. 67. See supra text accompanying notes See supra text accompanying notes See Becker, 943 P.2d at See 46 U.S.C (1994). The Secretary then delegated his powers and duties under the FBSA to the Secretary of the Coast Guard pursuant to 46 U.S.C. 4303(a). See Moore v. Brunswick Bowling & Billiards Corp., 889 S.W.2d 246, 248 n.3 (Tex. 1994); supra note See Moore, 889 S.W.2d at 248 (citing 46 U.S.C. 4302(c)(4)).

10 1999] FEDERAL BOAT SAFETYACT regulation will compel substantial future alteration of a vessel or piece of associated equipment, the Secretary and the NBSAC must initially determine that such regulation is necessary to avert a significant risk of physical harm to the public.l Pursuant to these provisions, the Secretary of the Coast Guard-to whom the Secretary's power was delegated-instructed the NBSAC to appoint a Propeller Guard Subcommittee ("Subcommittee") in 1988 to review and assess data concerning propeller accidents. The NBSAC charged the Subcommittee with examining the possibility of mandating propeller guards to avoid propeller related injuries!' The Subcommittee's results and conclusions are set forth in the Report of the Propeller Guard Subcommittee. 7 5 The report concluded: (1) propeller guards can only slightly increase boating safety, especially because propellers themselves are so rarely the "sole" cause of injury in an underwater impact; 76 (2) the drawbacks of using propeller guards outweigh any protection they may provide in a propeller strike;" (3) efforts to improve recreational boating safety should focus on boater education, rather than superficial solutions such as a propeller guard requirement, because the initial cause of these accidents is often operator error; 7 and (4) recreational boaters should not be lulled into a false sense of security by "thinking there is a 'safe' device which would eliminate or significantly reduce such injuries or fatalities." ' The report documented many problems with the use of propeller guards to prevent propeller strike accidents. For example, studies showed that some current designs for propeller guards create new hazards such as catching and trapping limbs against the rotating 72- See id. at 248 (citing 46 U.S.C. 4302(c)(3)). 73. See Propeller Guard Report, supra note 17, at See id. app. A. Specifically, the NBSAC's charge was to consider. (a) available propeller accident data and possible ways of covering propellers to prevent propeller accidents; (b) arguments for and against using such methods to prevent propeller strikes; and (c) several other factors such as how often such accidents occurred, whether the number of such accidents was increasing or decreasing, and whether there should be federal regulation. See id. 75. See id. at See id. at 23. Most injuries and fatalities from underwater accidents result from an impact with any part of the propulsion unit, rather than with the propeller blade. See id. 77. See id. (concluding that the use of propeller guards "can create new hazards of equal or greater importance"). 7& See id. Ignorant or careless operators are often a cause of boating accidents because they fail to understand the "abilities and limitations of their equipment" and "the consequences of careless or negligent operation" of their boats. Id. For example, a boat operator can reduce the chance of an underwater propeller accident by operating a boat in a manner that would prevent passengers from falling overboard. See id. at Id. at 24. The report also concluded that there is no propeller safety device currently available that can significantly reduce injuries, nor will one be available in the foreseeable future. See id.

11 FORDHAM LAW REVIEW [Vol. 68 propeller." 0 The additional bulk of a propeller guard also adds an impact hazard by increasing the surface area with which a submerged victim can come into contact. 81 Propeller guards also adversely affect boat operation. The addition of a propeller guard poses serious steering and handling problems, increases drag, 8 2 and dramatically reduces power and fuel efficiency. 3 Although propeller guards have been used successfully in some situations, they are still unfit for general use. For example, amusement parks have used guards on bumper boats for years." These boats, however, operate at a maximum speed of two miles per hour where a guard would not affect a boat's performance. Recreational boats, on other hand, generally travel at much higher speeds where a guard is more likely to adversely effect a boat's operation. 86 Rescue boats have also had some success with mask type guards. Although the wide-spaced bars on these guards minimize drag when racing to the rescue scene, they do not prevent body appendages from becoming trapped against the propeller." Additionally, evidence that the incidence of propeller caused deaths were relatively infrequent suggested that the installation of guards, even if successful, would do little to improve overall boating safety.m In fact, the number of people affected was minimal compared to the overall number of boating accidents reported per year. 89 One study 80. See id. at The report considered the three types of guards then available: the ring, screen, and tunnel/tube. See id. at (describing each type of guard in further detail). Each type of guard has its own particular drawback. See id. For example: In the case of the ring type guard, a new hazard is created, in that an arm, leg, etc., may be caught by the bars or ring and held against the rotating propeller. Operators of a "guard-equipped boat" can be expected to have a false sense of security when approaching persons in the water at slow speeds, with a very real risk of impacting and/or entrapping a body appendage. Id. at (internal quotations omitted). 81. See id. at The added bulk of the propeller guard increases significantly the "underwater profile" of a boat, thereby increasing the odds of underwater contact. Id. at 20. Although propellers can cut and penetrate the body, guards increase the "hazard of blunt trauma injuries, which are often more severe." Id. at For example, "a skull impact at 10 mph or more in the water would be generally fatal." Id. at Drag is defined as either "motion effected with slowness or difficulty" or "something that retards motion or action." Merriam Webster's Collegiate Dictionary 350 (10th ed. 1997). 83. See Propeller Guard Report, supra note 17, at In one experiment, the added drag caused by the propeller guard reduced boat speed from 37 mph to 27 mph, requiring a 100% increase in horsepower to regain the initial speed. See id. at See id. at See id. 86. Normal operating speed is 10 mph or more, and is generally between mph. See id. at (discussing the adverse effects of propeller guards at speeds higher than 10 mph). 87. See id. at See id. at See id.

12 1999] FEDERAL BOATSAFETYACT found that the number of boating deaths involving propellers, approximately thirty to forty-nine per year, equaled one-third to onehalf of the number of deaths associated with being struck by lightning. Ultimately, the Subcommittee recommended that the "Coast Guard take no regulatory action [requiring] propeller guards." 9 ' The NBSAC approved the Subcommittee report, and the Coast Guard adopted all of the Subcommittee's recommendationsy- The Coast Guard's official position was that current propeller guard accident data did not warrant mandating propeller guards on motorboats. 3 The Coast Guard also noted the prohibitive costs of retrofitting millions of boats and the lack of a universal guard that could fit all boats as other reasons in support of its conclusion." Finally, the Coast Guard agreed to continue its efforts in monitoring propeller accident data and improvements in the propeller guard industry. 95 The FBSA, therefore, does not require recreational boaters to install propeller guards. It will not do so until the benefits of such a requirement demonstrably outweigh its drawbacks. Plaintiffs, however, continue to bring state tort claims based on a failure to install a propeller guard. In view of this conflict, the next part sets forth the basic principles of federal preemption of state common law claims, and discusses in detail the different types of preemption. II. THE DoCrRiNE OF FEDERAL PREEMPTION The defense commonly employed in claims based on propeller strike injuries is that the FBSA, combined with the Coast Guard's decision not to mandate propeller guards, precludes the plaintiff's state law based claims. This part outlines the basic principles of the doctrine of preemption and examines the two types of preemption, expressed and implied. A. Background and Basic Principles The doctrine of preemption is rooted in the Supremacy Clause of 90. The study was conducted in 1981, and covered the period from 1976 to See id app. E, at 1-2 (letter from Robert K. Taylor, P.E., Managing Engineer, Failure Analysis Associates, to Captain James E. Getz, Chairman, Propeller Guard Subcommittee, NBSAC (Aug. 2,1989)). 91. See id at See Moore v. Brunswick Bowling & Billiards Corp., 889 S.W.2d 246,249 (Tex. 1994) (citing Letter from Robert T. Nelson, Rear Admiral U.S. Coast Guard, Chief, Office of Navigation and Waterway Servs., to Mr. A. Newell Garden, Chairman (Feb. 1,1990)). 93. See id 94. See id. There are an infinite number of types of boats and motors on the water that differ in design, function, size, and type. See Propeller Guard Report, supra note 17, at 22. Thus, manufacturing a guard to fit all boats is nearly impossible. See id. 95. See Moore, 889 S.W.2d at 249.

13 FORDHAM LAW REVIEW [Vol. 68 the United States Constitution. 96 The Supremacy Clause provides that the laws of the United States "shall be the supreme Law of the Land," ' and essentially grants Congress the power to preempt state law. 98 The power to preempt state law extends to both positive enactments and common law. 99 Despite this extensive grant of power, courts seldom find that Congress exercises this power to its fullest extent. 1 " When addressing issues arising under the Supremacy Clause, courts presume that federal law does not supersede state police powers unless Congress clearly intended it to do so The "ultimate touchstone" of preemption is therefore Congressional intent. 1 2 When considering a claim of preemption, courts weigh three principles: federalism, predictability, and ease of administration. 103 The first and most important principle is federalism, 1 " which requires balancing the federal government's interest in regulation against the state government's desire to regulate its own interests and maintain its 96. See Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516 (1992); Davis v. Brunswick Corp., 854 F. Supp. 1574, 1579 (N.D. Ga. 1993), on reconsideration in part (Mar. 17, 1994); Mowery v. Mercury Marine, Div. of Brunswick Corp., 773 F. Supp. 1012, 1013 (N.D. Ohio 1991); Moore, 889 S.W.2d at 247; Becker v. United States Marine Co., 943 P.2d 700, 703 (Wash. Ct. App. 1997). But see Jack W. Campbell IV, Regulatory Preemption in the Garcia/Chevron Era, 59 U. Pitt. L. Rev. 805, (1998) (discussing courts' erroneous tendency to rely on the Supremacy Clause as the root of the preemption doctrine); Stephen A. Gardbaum, The Nature of Preemption, 79 Cornell L. Rev. 767, 768 (1994) (positing that it is error to believe that Congress's power to preempt is "closely and essentially connected to the Supremacy Clause"). 97. U.S. Const. art. VI. The Supremacy Clause provides in full: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof.., shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Id. 98. See Ryan v. Brunswick Corp., 531 N.W.2d 793,795 (Mich. Ct. App. 1995). For example, under the Supremacy Clause, Congress can preempt state law when it legislates pursuant to its power to regulate interstate commerce as derived from the Commerce Clause. See Marc S. Klein, Toward a Workable Paradigm of Federal Preemption, 1998 ALI-ABA Course of Study 101, See Shields v. Outboard Marine Corp., 776 F. Supp. 1579, 1581 (M.D. Ga. 1991) ("The preemption doctrine applies not only to state laws and regulations, but common law rules and jury awards of damages as well, since they also act as regulations and can frustrate congressional objectives.") See Betsy J. Grey, Make Congress Speak Clearly: Federal Preemption of State Tort Remedies, 77 B.U. L. Rev. 559, (1997) See id. at Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) (quoting Retail Clerks v. Schermerhorn, 315 U.S. 96, 103 (1963)); accord Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516 (1992); Lewis v. Brunswick Corp., 107 F.3d 1494, 1500 (11th Cir.), cert. granted, 118 S. Ct. 439 (1997), cert. dismissed, 118 S. Ct (1998); Farner v. Brunswick Corp., 607 N.E.2d 562, 565 (Ill. App. Ct. 1992); Grey, supra note 100, at ; Klein, supra note 98, at 106; Susan J. Stabile, Preemption of State Law by Federal Law: A Task for Congress or the Courts?, 40 Vill. L. Rev. 1, 7 (1995) See Stabile, supra note 102, at See id. at 9.

14 1999] FEDERAL BOAT SAFETY ACT "spheref of power." 10 5 Under the Tenth Amendment, those powers not delegated to the federal government, also known as the police powers, are reserved to the States. 1 "" The Tenth Amendment thereby checks Congress's power to override state law.10u Courts must balance the Tenth Amendment against the Supremacy Clause's grant of federal power to uphold state sovereignty in accordance with principles of federalism. 19 The second principle courts weigh is predictability" 0 Predictability refers to the ease with which those subject to a law can interpret that law."' Predictability allows those subject to a law to determine more easily which law governs and to adjust their behavior accordingly. 12 Although ease of interpretation is always a concern, this is especially important within the federal preemption context because preemption inherently involves interpreting the substance of two laws-one federal and one state-and the interaction between them."' A predictable preemption analysis that determines which standard governs simplifies the process for those subject to the conflicting standards and improves compliance. 114 A wholesale predictability analysis is not advised, however, because it can lead to an inflexible system of regulation that is less adaptable to the various situations that inevitably arise." 5 Thus, courts try to strike a balance between predictability and flexibility to reach the best result." 6 The third and final principle in preemption analysis is ease of administration." 7 Ease of administration focuses on the judicial 105. Id- at The police powers of the states extend to areas "traditionally relegated to the states... such as health and safety regulation, and in matters of only 'peripheral concern' to federal law." Grey, supra note 100, at See U.S. Const. amend. X. The 10th Amendment provides in full: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Id See Grey, supra note 100, at 568 (noting that under the Tenth Amendment, each state "will maintain a sovereign status independent of the national government"); see also Fry v. United States, 421 U.S. 542, 547 n.7 (1975) ("The [Tenth] Amendment expressly declares the constitutional policy that Congress may not exercise power in a fashion that impairs the States' integrity or their ability to function effectively in a federal system.") See, eg., Cipollone v. Liggett Group, Inc., 505 U.S. 504,516 (1992) (noting the delicate balance between the federal grant of power in the Supremacy clause and the preservation of the States' "historic police powers"); Grey, supra note 100, at 568 (emphasizing the Court's concern for "Federal-State" balance when resolving preemption issues) (citing Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977)) See Stabile, supra note 102, at See id. at See id. at See id at See id. at See id- at See id. at See id. at 9.

15 FORDHAM LAW REVIEW [Vol. 68 system and its ability to operate effectively and efficiently. 118 This principle relates to developing a sufficiently simple method of preemption analysis that lower courts can easily follow." 9 Complex rules for preemption analysis that are difficult to apply correctly and consistently yield uncertain and varying results This, in turn leads to increased litigation, which is both expensive and time consuming."' Thus, courts consider ease of administration when applying preemption analysis to avoid this unnecessary drain on the judicial system's resources. 1 2 Thus, preemption analysis begins with the Supremacy Clause, and continues with the principles of federalism, predictability, and efficiency. Together, they drive preemption analysis and help to determine the most just and beneficial outcome. B. Types of Preemption There are two types of federal preemption: express preemption and implied preemption. 1 " Whether preemption is found to be express or implied, the final result is the same-the relevant state law is rendered inoperable Express Preemption Express preemption occurs when Congress drafts a statute that includes language explicitly stating that the federal statute preempts state law. 1 2 An express preemption inquiry focuses on whether the 118. See id. at See id See id See id See id See Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977); Davis v. Brunswick Corp., 854 F. Supp. 1574, 1581 (N.D. Ga. 1993), on reconsideration in part (Mar. 17, 1994). Some courts divide preemption into three categories, but substantively the law is the same. See Lewis v. Brunswick Corp., 107 F.3d 1494, 1500 (11th Cir.), cert. granted, 118 S. Ct. 439 (1997), cert. dismissed, 118 S. Ct (1998); Mowery v. Mercury Marine, Div. of Brunswick Corp., 773 F. Supp. 1012, (N.D. Ohio 1991). For example, in Lewis, the court stated: Congressional intent to preempt state law may be revealed in several ways: (1) 'express preemption,' in which Congress defines explicitly the extent to which its enactments preempt state law; (2) 'field preemption,' in which state law is preempted because Congress has regulated a field so pervasively, or federal law touches on a field implicating such a dominant federal interest, that an intent for federal law to occupy the field exclusively may be inferred; and (3) 'conflict preemption,' in which state law is preempted by implication because state and federal law actually conflict, so that it is impossible to comply with both, or state law 'stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.' Lewis, 107 F.3d at 1500 (citations omitted) See supra part II.A See Klein, supra note 98, at 107 ("Congress (or an administrative agency to which it has delegated the power)... specifically declare[s], in a statute or regulation, an intention to foreclose state law in a particular area."); Grey, supra note 100, at 566.

16 1999] FEDERAL BOAT SAFETY A CT language of the preemption provision demonstrates a congressional intent to preempt state law.2 6 The most common indicator of express preemption is the presence of a preemption clause in a federal statute2 7 because such a clause clearly demonstrates a congressional intent to preempt. 12s A preemption clause also defines the scope and extent of the federal statute's preemption.' 29 Once a statute is found to contain an express preemption clause, courts use statutory construction to identify the scope of the preemption to determine the domain preempted. 3 0 Courts do not interpret the preemption provision "in a contextual vacuum," instead they also consider the presumption against preemption and the congressional purpose behind the statute." This analysis often implicates four factors: (1) the statute's plain language, or what it says on its face;'3 (2) the presumption against preemption; 33 (3) the congressional purpose in enacting the 126. Express preemption clauses are not uncommon in federal statutes. For example, the Employee Retirement Income Security Act ("ERISA") features a preemption clause, which provides that federal law "shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan." Klein, supra note 98, at 107 n.11 (quoting 29 U.S.C. 1144(a) (1988)). The National Traffic and Motor Vehicle Safety Act of 1966 provided that "no State... shall have any authority either to establish, or to continue in effect... any safety standard... not identical to the Federal standard." 15 U.S.C. 1392(d) (repealed 1994). The Medical Devices Amendments provide that "no State or political subdivision of a State may establish or continue in effect... any requirement-() which is different from, or in addition to, any requirement applicable under this chapter to the device, and (2) which relates to the safety or effectiveness of the device... under this chapter." 21 U.S.C. 360k (1994) Cf Stabile, supra note 102, at 7 ("In express preemption situations, such intent is sought primarily in the language of the preemption provision.") See Medtronic, Inc. v. Lohr, 518 U.S. 470, 471 (1996) (stating that "the Court need not go beyond [the statute's] pre-emptive language to determine whether Congress intended the [statute] to pre-empt at least some state law"); Cipollone v. Liggett Group, Inc., 505 U.S. 504, 517 (1992) (finding "there is no need to infer congressional intent to pre-empt state laws from the substantive provisions of the legislation" where a statute contains an express preemption provision (internal quotations omitted)) See Cipollone, 505 U.S. at See Medtronic, 518 U.S. at 471 (applying statutory interpretation to determine "the domain expressly pre-empted" (quoting Cipollone, 505 U.S. at 517) (internal quotations omitted)); Grey, supra note 100, at 566, Medtronic, 518 U.S. at 485. Justice Scalia disagreed with the plurality's application of the principles of interpretation in deciphering an express preemption clause in Cipollone. See 505 U.S. at (Scalia, J., concurring in part and dissenting in part). In Scalia's opinion, once express preemption has been established by the presence of a preemption clause, the statute should be interpreted according to the ordinary or apparent meaning on its face, without applying additional principles or considerations. See id 132. See Medtronic, 518 U.S. at ; Cipollone, 505 U.S. at ; Grey, supra note 100, at See Medtronic, 518 U.S. at 485, 487 (declaring that this presumption not only applied to the existence of a preemption clause, but also to the scope of the clause).

17 FORDHAM LAW REVIEW statute;3 and (4) the regulatory context of the statute. 35 The presence of a savings clause, along with a preemption clause, adds another dimension to the preemption analysis. 136 Savings clauses are statutory provisions that "limit the reach of an express preemption clause, exempting state law claims... [without negating] the effect of the preemption clause. ' 13 Congress generally includes a savings clause when it anticipates common law claims in the area that the statute regulates. 138 Presumably, Congress includes a savings clause to ensure that those claims that it wished to preserve are not inadvertently preempted in the future. 2. Implied Preemption [Vol. 68 If a statute does not contain a preemption provision, or if the provision is ambiguous, then courts will consider whether the state law is preempted by implication. 139 An implied preemption analysis looks to the substantive provisions of the federal statute for evidence of congressional intent to preempt.1 40 There are two types of implied preemption: field preemption 4 ' and conflict preemption. 42 Field preemption exists when the wording of a federal statute or its legislative history evinces Congress's intent to exclusively occupy a given regulatory field. 43 Accordingly, a field preemption inquiry 134. See id. at 486, 490 (examining the statute's general purpose and legislative history to determine its scope); Cipollone, 505 U.S. at 518; Grey, supra note 100, at 566 (searching for the congressional purpose as demonstrated in the statute's legislative history) See Cipollone, 505 U.S. at , 519; Grey, supra note 100, at See William W. Schwarzer, Federal Preemption-A Brief Analysis, 1997 ALI- ABA Resource Materials 693, Id. For example, the National Traffic and Motor Vehicle Safety Act of 1966, 15 U.S.C (repealed 1994), contained a savings clause: "Compliance with any Federal motor vehicle standard... does not exempt any person from any liability under common law." Id. 1397(k). The FBSA contains a similar savings clause. See supra part I.B See Lewis v. Brunswick Corp., 107 F.3d 1494, 1504 (11th Cir.), cert. granted, 118 S. Ct. 439 (1997), cert. dismissed, 118 S. Ct (1998) See Medtronic, Inc. v. Lohr, 518 U.S. 470, 489 (1996); Grey, supra note 100, at 566. The Court has implied that Congress's inclusion of an express preemption clause precludes the existence of implied preemption. See Cipollone, 505 U.S. at 517. But this suggestion has not necessarily been followed. See, e.g., Freightliner Corp. v. Myrick, 514 U.S. 280, (1995) (stating that the Cipollone inference is not "a categorical rule precluding the coexistence of express and implied preemption") See Stabile, supra note 102, at Scholars have sometimes referred to "field preemption" by other names, such as "implied field preemption," Grey, supra note 100, at 566, and "occupation of the field," Klein, supra note 98, at 107. Substantively, however, there is no difference "Conflict preemption" is also commonly known by other names, such as "conflicts preemption," Grey, supra note 100, at 566, and "actual conflict," Klein, supra note 98, at 108. Again, there is no difference substantively See Grey, supra note 100, at 566 (defining field preemption as "when a system of federal regulation is so comprehensive as to displace all state regulation"); Klein, supra note 98, at 107 (defining field preemption as when "federal law 'touch[es] a